B-161327, JUL. 25, 1967

B-161327, JUL. 25, 1967

COMPENSATION - HIGHEST PREVIOUS RATE RULE REAFFIRMATION OF DECISION B-161327 OF MAY 5, 1967, UPHOLDING DETERMINATION OF BLUE GRASS ORDNANCE DEPOT THAT EMPLOYEE'S LIMITED EXPERIENCE IN OVERSEAS POSITIONS DID NOT QUALIFY HIM FOR A RATE HIGHER THAN THE ENTRANCE RATE FOR A GS-7 GRADE TO WHICH APPOINTED.

TO MR. LESTER A. HOPPER:

YOUR LETTER OF JUNE 3, 1967, REQUESTS FURTHER CONSIDERATION OF YOUR CLAIM WHICH WAS THE SUBJECT OF OUR DECISION OF MAY 5, 1967, B-161327.

IN VIEW OF THE RECORD IN YOUR CASE, THE DETAILED FACTS AND CIRCUMSTANCES AND THE REASONS WHY THE DECISION SUSTAINED OUR CLAIMS DIVISION SETTLEMENT OF OCTOBER 6, 1966, NEED NOT BE REPEATED HERE.

YOU RECEIVED A PROMOTION ON JULY 10, 1961, FROM GS-2040-4, STEP G, $4,670 PER ANNUM, TO GS-2001-7, STEP A, $5,355 PER ANNUM. THAT PROMOTION ACTION COMPLIED WITH THE REQUIREMENTS OF SUBSECTION 802/B) OF THE CLASSIFICATION ACT OF 1949, AS AMENDED, 5 U.S.C. 1132/B), IN EFFECT AT THE TIME, WHICH READS IN PERTINENT PART AS FOLLOWS:

"/B) ANY OFFICER OR EMPLOYEE WHO IS PROMOTED OR TRANSFERRED TO A POSITION IN A HIGHER GRADE SHALL RECEIVE BASIC COMPENSATION AT THE LOWEST RATE OF SUCH HIGHER GRADE WHICH EXCEEDS HIS EXISTING RATE OF BASIC COMPENSATION BY NOT LESS THAN ONE STEP-INCREASE OF THE GRADE FROM WHICH HE IS PROMOTED OR TRANSFERRED. * * * "

UNDER THE QUOTED PROVISION A ONE STEP INCREASE FROM GS-4 WOULD HAVE AMOUNTED TO $105, WHEREAS YOU ACTUALLY RECEIVED AN INCREASE OF $685 IN THE PROMOTION OF JULY 10, 1961.

THE "HIGHEST PREVIOUS RATE" RULE DISCUSSED IN OUR DECISION OF MAY 5, IS DISCRETIONARY UNDER THE CIVIL SERVICE COMMISSION'S REGULATORY AUTHORITY, 5 U.S.C. 5115, FORMERLY 5 U.S.C. 1072. THE COMMISSION'S REGULATION IN SUBSECTION 25.103/B) OF THE FEDERAL PERSONNEL MANUAL WHICH WAS IN EFFECT DURING 1961, STEMS FROM A LONG LINE OF DECISIONS BY THIS OFFICE. SEE THE ENCLOSED COPIES OF B-61181 DATED NOVEMBER 27, 1946, AND B-63142 DATED JANUARY 28, 1947, 26 COMP. GEN. 368 AND 530, RESPECTIVELY.

THE FOREGOING RULE BY THE STATUTE--AS DISTINGUISHED FROM THE DISCRETIONARY AUTHORITY IN THE CITED REGULATION--HAS BEEN APPLIED UNIFORMLY IN APPROPRIATE CASES SINCE 1949. THE CORRESPONDENCE WHICH WE HAVE RECEIVED FROM YOU, BEGINNING WITH YOUR LETTER OF APRIL 21, 1965, CONTAINS NO EVIDENCE THAT THE ABOVE STATUTE'S PROVISION WAS INAPPLICABLE TO YOUR PROMOTION ON JULY 10, 1961. THE BLUE GRASS ORDNANCE DEPOT'S LETTER OF JULY 10, 1961, ADVISED YOU EXPLICITLY WHY THE LIMITED EXPERIENCE ACQUIRED BY YOU IN YOUR OVERSEAS POSITIONS DID NOT QUALIFY YOU FOR A RATE HIGHER THAN THE ENTRANCE RATE (STEP A) IN THE GS-7 POSITION OF GENERAL SUPPLY OFFICER (POST PROPERTY OFFICER ASSISTANT) AT THE SAID DEPOT. THAT CONCLUSION IS NOT VIEWED BY US AS HAVING BEEN REACHED IN AN ARBITRARY OR CAPRICIOUS MANNER. HENCE, WE CANNOT AGREE WITH YOUR CONCLUSION THAT THAT PROMOTION DENIED YOU A CONSTITUTIONAL RIGHT OR SOME GUARANTEE OF EQUALITY. WE POINT OUT, HOWEVER, IN THAT REGARD THAT CONSTITUTIONAL ISSUES ARE FOR DETERMINATION BY THE JUDICIARY RATHER THAN OUR OFFICE.

THIS MATTER HAS BEEN CONSIDERED BY US REPEATEDLY SUBSEQUENT TO YOUR INQUIRY OF APRIL 21, 1965. THEREFORE, FURTHER DISCUSSION OF YOUR CASE HERE WILL SERVE NO USEFUL PURPOSE, AND FURTHER CORRESPONDENCE WILL BE FILED WITHOUT REPLY.

AS TO YOUR QUESTION WHETHER THERE IS ANOTHER FEDERAL AUTHORITY FOR REVIEW AND CONSIDERATION OF YOUR CLAIM, WE MAY INFORM YOU THAT DECISIONS OF THIS OFFICE CONCERNING CLAIMS SUCH AS YOURS ARE BINDING UPON THE EXECUTIVE DEPARTMENTS OF THE FEDERAL GOVERNMENT.

AS TO A JUDICIAL APPEAL, SEE 28 U.S.C. 1346 AND 1491 RELATING TO MATTERS COGNIZABLE BY THE UNITED STATES DISTRICT COURTS, AND THE UNITED STATES COURT OF CLAIMS. IN THAT REGARD, WE INVITE YOUR ATTENTION TO 28 U.S.C. 2401 AND 2501, CONCERNING THE STATUTE OF LIMITATIONS APPLICABLE TO ACTIONS FILED IN THOSE COURTS.